Shiv Dayal, C.J.
1. One of us (Bajpai, J.) had referred the following question for being decided by a larger Bench:--
"Whether in compliance with the requirement of Sub-section (1) of Section 13, is it necessary for the defendant-tenant to pay to the landlord or deposit in Court the amount of arrears of rent, the recovery of which has become barred by limitation and which the landlord-plaintiff on his part cannot recover by process in the Court? "
A bench of three Judges heard the reference and by unanimous opinion dated Nov. 19, 1977 (reported in AIR 1978 Madh Pra 54 (FB)) answered the question in the negative. It was held:--
"The tenant is not obliged to deposit time-barred rent under the first part of Section 13 (1) of the M. P. Accommodation Control Act, 1961."
Thereafter, when this Second Appeal was placed before the Single Bench, the learned counsel for the appellants relied on a decision of the Supreme Court in Khadi Gram Udyog Trust v. Shri Ram Chandraji Virajman Mandir, Civil Appeal No. 1313 of 1977, D/- 28-11-1977 : (reported in AIR 1978 SC 287). It was urged for the appellants that the Supreme Court decision runs counter to the opinion of the Full Bench of this Court. The Single Bench then referred the following question for being answered by a larger Bench:--
"Whether, in the light of the observations made by the Supreme Court in the case of Khadi Gram Udyog Trust v. Shri Ram Chandraji Virajman Mandir (AIR 1978 SC 287), the opinion of the larger Bench given on 19-11-1977 : (reported in AIR 1978 Madh Pra 54 (FB)) in this appeal, cannot hold the field and the tenant-defendant is bound to deposit even the time barred arrears of rent in compliance with the provisions of Section 13 (11 and (2) of the M. P. Accommodation Control Act. 1961 ?"
2. The question then came before this larger Bench.
3. Section 12 of the M. P. Accommodation Control Act, 1961 (hereinafter called the Act) Imposes restrictions on eviction of tenants even when tenancy is determined under the general law. This section bars a suit for eviction of a tenant notwithstanding anything to the contrary contained in any other law or contract, except on one or more of the grounds E(a) to (p) contained in Sub-section (1). For the purposes of the present question and for facilitating the discussion. suffice to reproduce three of them:--
"12. Restriction on eviction of tenants.-- (1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any Civil Court against a tenant for Ms eviction from any accommodation except on one or more of the following grounds only, namely :--
(a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manners (b) x x x x
(c) x x x: x
(d) x x x x
(e) that the, accommodation let for residential purpose is required bona fide by the landlord for occupation as a residence for himself or for any member of his family, if he is the owner thereof, or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned:
(f) x x x x
(g) x x x x
(h) that the accommodation is required bona fide by the landlord for the purpose of building or rebuilding or making thereto any substantial additions or alterations and that such building or rebuilding or alterations cannot be carried out without the accommodation being vacated;
X X X X
(2) x x x x
(3) No order for the eviction of a tenant shall be made on the ground specified in Clause (a) of Sub-section (1), if the tenant makes payment or deposit as required by Section 13 :
Provided that no tenant shall be entitled to the benefit under this sub-section, if, having obtained such benefit once in respect of any accommodation, he again makes a default in the payment of rent of that accommodation for three consecutive months. x x x x".
"(7) No order for the eviction of a tenant shall be made on 'the ground specified in Clause (h) of Sub-section (1), unless the Court is satisfied that the proposed reconstruction will not radically alter the purpose for which the accommodation was let or that radical alteration is in the public Interest, and that the plans and estimates of such reconstruction have been properly prepared and that necessary funds for the purpose are available with the landlord, x x x x"
4. The Act is designed to prevent exploitation of tenants by the landlords. Its real object is to limit the rights of the landlords to increase the rent or otherwise obtain possession of the premises for charging exorbitant rent from new tenants. It is stated in 23 Halsbury (Simonds) 713 (para. 1456):--
"For the purpose of mitigating hardship resulting from scarcity of housing which existed during and after the 1914-1918 World War, and was foreseen at the beginning of that of 1939-1945, a series of Acts has been passed."
See also Mauray v. Durley Chine (Investments) Ltd., (1953) 2 All ER
458. At the same time, a check is put on unscrupulous tenants who would like to protract litigation without paying rent. In genuine cases, genuine needs of the landlord have been given due consideration and ejectment on this ground has been allowed.
5. Section 12 of the Act imposes restrictions on eviction of tenants. Subsection (1) enumerates the grounds on one or more of which alone, a suit for eviction against a tenant can be instituted. The ground in Clause (a) of Sub-section (1) becomes available, if the tenant neither paid nor tendered the whole of the arrears of rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him. Even in case of default, when a suit has been instituted against him, he is given one more opportunity to pay or deposit rent and further to go on depositing regularly the rent following due every month, thus ensuring regular payment of rent to the landlord. If the tenant complies with this requirement, he gets the same benefit as he would have got if he had paid rent within two months of the receipt of notice of demand of rent contemplated in Clause (a) of Sub-section (1). And, in that case, the suit for eviction will be dismissed. The rent so deposited will go to the landlord. It is settled law that the tenant earns this protection only when he complies with the provisions of Section 13 (1). Even a single default destroys that protection.
6. Even where a suit is instituted on any other ground, except the arrears of rent, the tenant is required to go on depositing rent regularly, although in such a case there is no question of earning such protection as is afforded In Sub-section (3) of Section 12, However, in case of non-compliance, the defence of the tenant may be struck out on the ground of contumacy or positive mala fide.
7. Section 13 (1) of the Act is in two parts and it may be reproduced in that fashion :--
"13. When tenant can get benefit of protection against eviction. -- (1) On a suit or proceeding being instituted by the 'landlord on any of the grounds referred to in Section 12, the tenant shall, within one month of the service of the writ of summons on him or within such further time as the Court may, on an application made to it, allow in this behalf, deposit in the Court or pay to the landlord an amount calculated at the rate of rent at which it was paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made and shall thereafter continue to deposit or pay month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate."
The other sub-sections of Section 13 may also be reproduced here for facility of understanding them:--
"(2) If in any suit or proceeding referred to in Sub-section (1), there is any dispute as to the amount of rent payable by the tenant, the Court shall fix a reasonable provisional rent in relation to the accommodation to be deposited or paid in accordance with the provisions of Sub-section (1) till the decision of the suit or appeal.
(3) If, in any proceeding referred to In Sub-section (1) there is any dispute as to the person or persons to whom the rent is payable, the Court may direct the tenant to deposit with the Court the amount payable by him under Sub-section (1) or Sub-section (2) and in such a case, no person shall be entitled to withdraw the amount In deposit until the Court decides the dispute and make an order for payment of the same.
(4) If the Court is satisfied that any dispute referred to in Sub-section (3) has been raised by a tenant for reasons which are false or frivolous the Court may order the defence against eviction to be struck out and proceed with the hearing of the suit.
(5) If a tenant makes deposit or payment as required by Sub-section (1) or Sub-section (2), no decree or order shall be made by the Court for the recovery of possession of the accommodation on the ground of default in the payment of rent by the tenant but the Court may allow such cost as it may deem fit to the landlord.
(6) If the tenant fails to deposit or pay any amount as required by this section, the Court may order the defence against eviction to be struck out and shall proceed with the hearing of the suit."
8. It must at once be seen that under the first part of Sub-section (1) of Section 13, period for which the tenant has to deposit the arrears of rent is "the period for which the tenant may have made default." These words are most significant, The word "default" necessarily refers to the default described in Clause (a) of Sub-section (1) of Section 12:--
"(a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner." (Underlined by us)
The expression we have underlined above, i.e. "the whole of the arrears of rent legally recoverable" necessarily excludes the arrears which had become barred by time. It is Incontestable that if on receipt of the notice of demand under Clause (a) the tenant makes payment of the whole of the arrears of rent, which are within limitation, the landlord will not be entitled to bring a suit on ground (a). In other words, although the tenant may omit to pay or may even refuse to pay time barred rent and if he specifically makes payment of rent, which is within time, ground (a) will not be available to the landlord, because the tenant's liability would disappear as soon as he pays the whole of the arrears of rent legally recoverable from him, within the prescribed time. It is in that context that Section 13 (1) requires the tenant to pay arrears of rent for the period of default. This section clearly affords another and final opportunity to the tenant to pay the arrears of rent. It is the compliance of the first part of the sub-section, coupled with the second part of the sub-section which earns the protection under Section 12 (3), See Chitrakumar Tiwari v. Gangaram. 1966 Jab LJ 1208 (para 28). The "default" in Sub-section (1) of Section 13 is clearly referable to, the default committed under Clause (a) of Section 12 (1).
9. The expression "for the period for which the tenant may have made default, including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made" speaks of two periods :
(i) The period for which the tenant may have made default; and
(ii) The period subsequent thereto. The word "thereto" necessarily refers to the period of default committed under Clause (a) of Section 12 (1). The first part of Section 13 (1) refers to the first depositing only. Thereafter, the tenant is required to go on depositing rent regularly for every current month on' the prescribed date,
10. Now, Sub-section (6) of Section 13 may be adverted to, If the tenant does not deposit or pay rent as required either under the first part or the second part of Sub-section (1), the Court may order his defence against eviction to be struck out and in that case it shall proceed with the hearing of the suit. It must be remembered that the requirement to pay rent under Section 13 (1) is not confined to a suit under Clause (a) of Section 12 (1), but to every other clause also under Section 12 (1).
11. Having examined these provisions, if the interpretation suggested by the appellants is accepted, Section 13 will turn out to confer a new right on the landlord to recover time barred rent by providing this new machinery for the same. This may be demonstrated thus. Suppose your tenant is in arrears of rent for 7 years, Now, obviously by bringing a suit against him, you can enforce recovery of the arrears of rent for three years only. You know you cannot recover the arrears for the first four years, they being barred by time. What you should do is to institute a suit against your tenant on any pretended ground under Section 12 (1), say under Clause (e) or (h). Although you do not require the accommodation for residential purpose, nor for the purpose of building or rebuilding, your real object is to recover the time-barred rent and this you will achieve in a suit, because the tenant (according to the appellants' interpretation) will have to deposit tune barred rent as well, or to suffer the penalty of striking out of the defence. The tenant will not perhaps suffer the latter, otherwise, in all probability, a decree for eviction will be passed against him.
If, therefore, he deposits all arrears of rent, including time-barred rent, your purpose is served and you may withdraw the suit or get it dismissed. You will have merely to pay costs of the suit. But you have made substantial achievement inasmuch as your time barred rent would be recovered. This illustration makes it clear that by accepting the appellants' interpretation, Section 13 (1) becomes a handle for recovering time barred arrears of rent, or, to borrow respectfully the expression from New Delhi Municipal Committee v. Kalu Ram. AIR 1976 SC 1637, would constitute a source or foundation of a right to claim arrears otherwise time barred. This position cannot be accepted. The Act was not designed to, confer any new rights on the landlord. Section 12 or Section 13 does not bestow upon the landlord any new benefit, nor does it enlarge his rights conferred under the T. P, Act. It under the general law, the landlord cannot enforce recovery of time-barred arrears of rent, Section 13 does not confer such right. When looked at from the landlord's view, the Act is restrictive, not enabling. The object and scope of the Act is to restrict the right of the landlord to raise rent and to recover possession, except on specified grounds, but not to confer upon him any new right.
Having regard to the present socio-economic setup, In the absence of a specific language, the Accommodation Control Act cannot be Interpreted to be a source or foundation of a right to enforce recovery of time barred rent, which the landlord otherwise could not have done. (New Delhi Municipal Committee v. Kalu Ram (supra)). The above view is fortified by Sub-section (2) of Section 13. If there is a dispute as to the amount of rent payable by the tenant, the Court is bound to fix reasonable provisional rent to be deposited by the tenant. A "dispute" contemplated in Sub-section (2) cannot be in respect of time barred arrears because that claim will at once be rejected under O. 7 R. 11. C. P. C. What will then remain would be arrears "legally recoverable". The dispute will then he confined to the rent legally recoverable and that is the meaning of the word "payable" In Section 13 (2). In other words, when a dispute is raised as to the amount of rent payable, that dispute will be relatable only to those arrears which are "payable", i.e. "legally recoverable" and not time barred. Section 7 of the Delhi Public Premises (Eviction of Unauthorised Occupants) Act, 1958, reads thus :--
"7. Power to recover rent or damages in respect of public premises as arrears of land revenue.
(1) Where any person is in arrears of rent payable in respect of any public premises, the estate officer may, by order, require that person to pay the same within such time and in such instalments as may be specified in the order,
(2) Where any person is, or has at any time been in unauthorised occupation of any public premises, the estate officer may, having regard to such principles of assessment of damages as may be prescribed, assess the damages on account of the use and occupation of such premises and may by order, require that person to pay the damages within such time and in such instalments as may be specified in the orders
Provided that no such order shall be made until after the issue of a notice in writing to the person calling upon him to show cause within such time as may be specified in the notice why such order should not be made, and until his objections, if any, and any evidence he may produce in support of the same, have been considered by the estate officer.
(3) If any person refuses or fails to pay the arrears of rent or any instalments thereof payable under Sub-section (1) or the damages or any instalment thereof payable under Sub-section (2) within the time specified in the order relating thereto the estate officer may issue a certificate for the amount due to the Collector who shall proceed to recover the same as an arrear of land revenue."
On a true construction of the word "payable", their Lordships interpreted the section thus :--
"The word 'payable' is somewhat indefinite in import and Sts meaning must be gathered from the context in which it occurs. 'Payable' generally means that which should be paid. If the person in arrears raises a dispute as to the amount the Estate Officer in determining the amount payable cannot ignore the existing laws. If the recovery of any amount is barred by the law of limitation, It is difficult to hold that the Estate Officer could still insist that the said amount was payable. When a duty is cast on an authority to determine the arrears of rent, the determination must be in accordance with law."
Their Lordships referred to Hans Raj Gupta v. Official Liquidators of the Dehradun-Mussorrie Electric Tramway Co. Ltd., 60 Ind App 13 5 (AIR 1933 PC 63), where it was observed :--
"It is a section which creates a special procedure for obtaining payment of moneys; St is not a section which purports to create a foundation upon which to base a claim for payment. It creates no new rights,"
The Supreme Court then said:--
"We are clear that the word "payable" in Section 7, in the context in which it occurs, means 'legally recoverable'."
12. In the case of a dispute under Sub-section (2) of Section 13 as to the amount of rent payable by the tenant, the Court must, while fixing reasonable provisional rent, include the time barred arrears of rent. Now, it will be anomalous that if the tenant raises a dispute under Sub-section (2) of Section 13, he would have to pay time barred rent also. But if he does not raise a dispute as contemplated in Sub-section (2), he must deposit time barred arrears of rent as well, Such a position cannot be accepted.
13. This is what the Full Bench of three Judges held in the present case, while answering the question referred in the first instance,
14. Their Lordships' decision in Khadi Gram Udyog Trust v. Shri Ram Chandraji Virajman Mandir (AIR 1978 SC 287), is not apposite to Section 13 (1) of the M. P. Accommodation Control Act, 1961. What was before their Lordships in Khadi Gram Udyog Trust case, was the interpretation of Section 20 (4) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, Section 20 of that Act enacts as follows :---
"20. Bar of suit for eviction of tenant except on specified grounds,--- (1) Save as provided in Sub-section (2), no suit shall be instituted for the eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner :
Provided that nothing in this sub-section shall bar a suit for the eviction of a tenant on the determination of his tenancy by efflux of time where the tenancy for a fixed term was entered into by or in pursuance of a compromise or adjustment arrived at with reference to a suit, appeal, revision or execution proceeding, which Is either recorded in court or otherwise reduced to writing and signed by the tenant.
(2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely :
(a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand:
Provided that in relation to a tenant who is a member of the armed forces of the Union and in whose favour the prescribed, authority under the Indian Soldiers (Litigation) Act, 1925 (Act No. IV of 1925) has issued a certificate that he is serving under special conditions within the meaning of Section 3 of that Act or where he 'has died by enemy action while so serving, then in relation to his heirs, the words 'four months' in this clause shall be deemed to have been substituted by the words 'one year';
(b) that the tenant has wilfully caused or permitted to be caused substantial damage to the building;
(c) that the tenant has without the permission in writing of the landlord made or permitted to be made any such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it;
(d) that the tenant has without the consent in writing of the landlord used it for a purpose other than the purpose for which he was admitted to the tenancy of the building or otherwise done any act which is inconsistent with such use or has been convicted under any law for the time being in force of an offence of using the building or allowing it to be used for illegal or immoral purposes;
(e) that the tenant has sub-let, in contravention of the provisions of Section 25, or as the case may be, of the old Act, the whole or any part of the building;
(f) that the tenant has renounced his character as such or denied the title of the landlord, and the latter has not waived his right of re-entry or condoned the conduct of the tenant;
(g) that the tenant was allowed to occupy the building as part of his contract of employment under the landlord, and his employment has ceased.
(4) In any suit for eviction on the ground mentioned in Clause (a) of Sub-section (2), if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposits in Court the entire amount of rent and damages for use and occupation of the building due from 'him (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlords' costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under Sub-section (1) of Section 30, the Court may, in lieu of passing decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground:
Provided that nothing in this subsection, shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building In the same city, municipality, notified area or town area.
Explanation.-- For the purpose of this sub-section -
(a) the expression 'first hearing' means the first date for any step or proceeding mentioned in the summons served on the defendant.
(b) the expression 'cost of the suit' Includes one-half, of the amount of counsel's fee taxable for a contested suit.
(5) Nothing in this section shall affect the power of the Court to pass a decree on the basis of an agreement, compromise or satisfaction recorded under Rule 3 of Order XXIII of the first Schedule to the Civil P. C 1908 (Act No, V of 1908),
(6) Any amount deposited by the tenant under Sub-section (4) or under Rule 5 of Order XV of the First Schedule to the Civil P. C. 1908, shall be paid to the landlord forthwith on his application without prejudice to the parties pleadings and subject to the ultimate decision in the suits."
It is at once noteworthy that under the Uttar Pradesh Act, there is no provision analogous or corresponding to Section 13 (1) of the M. P. Act. There is no provision in the U, P, Act that if the tenant does not deposit arrears of rent, or does not deposit rent falling due during the pendency of the suit, his defence would be struck out. This distinction is vital. A provision which takes away a valuable right has to be strictly construed. Section 13 (1) has far-reaching implications, Secondly, Section 13 (1) applies to every suit irrespective of the language of the clause under Section 12 a a suit may have been instituted (sic). Thirdly, the expression "the period for which the tenant may have made default", as pointed out above, necessarily refers to the default under Section 12 (1) (a).
15. Section 20 (4) of the Uttar Pradesh Act is analogous to Section 12 (3) of the M. P. Act. However, there are remarkable features of distinction. Under Sub-section (4) of Section 20 of the U. P. Act, the tenant has to pay or tender "the entire amount of rent and damages............" while under Section 12 (3) of the M. P. Act, the tenant is required to make payment or deposit as required by Section 13, On a close analysis of Section 13, we have shown above that the tenant is not required to deposit time barred rent. Again, under the U. P. Act, the tenant may avail himself of the protection under Sub-section (4) of Section 20 in every suit whenever instituted against him on the ground contained in Sub-section (2) (e). In other words, the tenant may go on committing default and whenever a suit is instituted against him after four months' default, he has merely to pay rent along with interest at 9 per cent per annum and the costs, and the protection will be available to him.
It is remarkable that under the Madhya Pradesh Act the tenant gets only one such opportunity in life, provided the landlord has patience to bear two defaults. After having availed himself of the benefit of Section 12 (3) once, the tenant can afford to commit default in payment of rent for two consecutive months only, but not three. If he does so, the landlord will be free to give him notice and in case of non-payment of rent within the next two months, he is assured of a decree for eviction in his suit to be instituted. And, in such a case, even if the tenant deposits all arrears of rent under the first part of Section 13 (1) and also goes on depositing regularly rent for the current month, even then, a decree will be passed against him. This is the effect of the proviso to Section 12 (3). There is no such proviso under Section 20 (4) of the U. P. Act.
16. These are thus the checks and balance imposed on the tenant so that he may not protract litigation without payment of rent. Subject to that safeguard the Act is for the benefit of the tenant and it does not confer any new right on the landlord, which is not available to him under the Act, It will require specific language such as In the U. P, Act as interpreted in Khadi Gram Udyog Trust case (AIR 1978 SC 287) (supra), to confer a new right and then the principle that the statute of limitation bars a remedy but does not extinguish the right will uphold the validity of that provision. That principle was considered and applied to Section 7 of the Delhi Act in para 2 of the New Delhi Municipal Committee case (AIR 1976 SC 1637) (supra).
17. We are, therefore, of the opinion that (i) the tenant is not obliged to deposit time barred rent under Section 13 (1) or 13 (2) of the M. P. Accommodation Control Act, 1961', and (ii) their Lordships' decision in Khadi Gram Udyog Trust v. Shri Ram Chandraji Virajman Mandir (AIR 1978 SC 287), does not apply to Section 13 (1) and (2) of the M. P. Accommodation Control Act, as there is no corresponding provision in the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, which was under consideration before the Supreme Court in that case.
18. This is our answer to the question referred to us.
19. This Second Appeal shall now be laid before a Single Bench.